Do We Really Need to “Streamline” the Environmental Protections of SEQRA?

by Tom Ellis

ALBANY, NY: “This is an incredible threat to the effectiveness of SEQRA,” said Roger Downs, Sierra Club Atlantic Chapter Conservation Director, at the May 17 SPB dinner. Roger lectured on the “streamlining” of the State Environmental Quality Review Act (SEQRA) proposed by the NYS Department of Environmental Conservation (DEC) which administers SEQRA.

Roger began by congratulating Save the Pine Bush for having used SEQRA “probably better than most” people and groups and for “having breathed life into SEQRA and made it what it is.”

He said SEQRA was enacted in 1975 and DEC has made prior efforts to weaken it. The point of this streamlining, he said, as with prior ones, is for DEC to help the developers. “It is not SEQRA that is broken,” he said, “but the incompetently written development projects.” He said a strong SEQRA “should be self-enforcing.”

Roger went into some of the proposed SEQRA changes. He said Type 1 Actions require an environmental impact statement (EIS) whereas Type 2 Actions do not. He said an environmental attorney based in Buffalo reviewed the all the 2016 DEC Environmental Notice Bulletins and identified only 200 EISs being required statewide last year.

He said among the few improvements in the proposed SEQRA amendments are that the number of units in a proposed housing developments subject to an EIS would be reduced. Historic properties or those eligible for historic preservation might also obtain more protection.

Among the negative aspects of the new SEQRA proposal are that the list of activities not requiring an EIS would be increased by almost 20 from the current 37. Many of these would be “green” developments and redevelopments of urban centers. “We must reject the notion that ‘green development’ must be exempted from EIS,” he said. The new regulations provide vague descriptions of what “green” is. “There could be situations where an EIS would be good,” he said. If the regulations are approved, developers would identify more projects as “green” so as to evade SEQRA review.

Roger referred to the “Stewart’s Loophole” (the approximate size of a typical Stewart’s shop in an urban area) that would be enlarged with the new regulations. At present a vacant lot of up to 4000 square feet in an urban area is now EIS exempt; the size of the loophole would be increased to 8000 square feet in small communities and up to 40,000 square feet in larger communities. “DEC,” he said, “seems to want to exempt any development in urban areas from EIS.” He said “the EIS tool is not used much to drag good things down” and it would be better to err on the side of caution and consider or require an EIS. “Exempting proposals from review,” he said, “is a bad idea because bad projects could be pushed through.”

Some brownfield cleanup agreements could become SEQRA exempt with the new regulations and it is possible that day care centers could be built atop industrial wast sites. He said

all solar energy projects of 5 megawatts (one megawatt equals one million watts) or less would be exempted from SEQRA which he said “is almost like a solution in search of a problem.” He said dedication of parkland would become a Type 2 Action. The transfer of up to five acres of land in a municipality to a developer for affordable housing might become a Type 2 Action.

The most dangerous part of the proposed regulations he said concerns “scoping” which occurs at the start of a project when interested parties identify the issues that should be addressed in the draft EIS. Scoping, which today is not mandatory, would become mandatory, which is good, he said. The danger with the new proposal is that the scoping period would be limited to sixty days and new issues could not be raised after these sixty days. Roger said that new issues often arise after the scoping is completed and have sometimes been included in an EIS. With the new regulations, it would be much more difficult to force their inclusion in the draft EIS. He said “this will incentivize hiding the worst aspects of a project by a developer during scoping” with them hoping no one notices.

The new regulations mention climate change and would allow for the identification and inclusion of measures to mitigate climate change. Roger said a much better ides would be for an evaluation at the start of the environmental review of if the project would contribute to climate change.

Roger said the negatives in the proposed regulations outweigh the positives; thus he urged listeners to contact DEC and urge the agency to adopt the “no action alternative” which would reject the whole proposal and leave the current regulations in place.

[The public comment period on the proposed regulations ended on May 19. SPB was unsuccessful in obtaining a ninety day comment extension.]

During the Q&A Roger said “the proposed regs are not well thought out…It sets us up for a lot of green-washing.” He said mandatory scoping is good but it should not limit the information that can enter the process later on. He said “sixty days isn’t much time to comment. Often it takes that long for people to become aware of the issue.”




Published in June/July 2017 Newsletter
Save the Pine Bush Newsletter